A tribunal must compare the measure to the treatment of domestic investments only; as long as the treatment is identical, a measure is not discriminatory, even if the consequences of the treatment were more severe for the foreign investor

Multiple parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty in front of a tribunal, if this tribunal is the only forum to protect them

A treaty provision that requires that “the dispute” shall not have been submitted for resolution in accordance to other dispute-settlement procedures, precludes jurisdiction only if the different proceedings concern the same parties and the same dispute

Parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty before a tribunal, if this tribunal is the only forum to protect them

Multiple parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty in front of a tribunal, if this tribunal is the only forum to protect them

The claimant’s non-disclosure of a prima facie case that the respondent has breached the treaty does not constitute an abuse of process

Protection of Investors under IITs

Applicability of IITs

State Conduct as a ‘Measure’ Violating the Treaty

A statement of a member of a state organ does not constitute a measure as long as the statement has no direct effect on the investment or cannot be attributed to the state

A statement by a state organ does not amount to a measure inasmuch as it refers to the interpretation of law only and does not have any legal effect

Expropriation and Standards of Protection

Expropriation

General Requirements of an Expropriatory Act

Degree of Interference

Definition of an expropriatory act

Further Problems

Expropriation requires an act initiated by the state and the act has to result in a benefit for the state

Fair and Equitable Treatment

Relationship to Public International Law

The obligation to provide treatment in conformity with public international law does not broaden the protection of the investor beyond the other more specific standards of protection of the IIT

Character and Scope

General remarks on fair and equitable treatment

Arbitrary and Discriminatory Measures

In case the IIT requires the respondent to refrain from “arbitrary and discriminatory” treatment, a measure must be both arbitrary and discriminatory to violate the IIT

A tribunal must compare the measure to the treatment of domestic investments only; as long as the treatment is identical, a measure is not discriminatory, even if the consequences of the treatment were more severe for the foreign investor

Definition of arbitrary

Full Protection and Security

Character and Scope

The full protection and security standard is not a strict liability standard

Further Problems

There is no obligation for a state to intervene in a dispute between two companies; the state’s only duty is to provide a functioning judicial system

Dispute Settlement Clauses

Waiting Clauses / Duty to Attempt Settlement Before Arbitration

Character of Waiting Clauses

A waiting period is not a jurisdictional provision, but a procedural rule

Starting Date and Formal Requirements Triggering the Waiting Period

The waiting period runs from the date at which the state is advised that the breach in question occurred

Consequences of Failure to Observe the Waiting Period

It would be overly formalistic for a tribunal to insist on a waiting period in case the respondent would never have accepted to enter into negotiations

The Problem of Parallel Proceedings in Cases Where There is no Explicit Clause Avoiding Such Situations

Parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty before a tribunal, if this tribunal is the only forum to protect them

Investment Treaty Arbitration

Admissibility

Lis Pendens / Parallel Proceedings

A treaty provision that requires that “the dispute” shall not have been submitted for resolution in accordance to other dispute-settlement procedures, precludes jurisdiction only if the different proceedings concern the same parties and the same dispute

Damages and Interest

Causation

Causality requires that the breach is conditio sine qua non and no superseding cause exists

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